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2012 Supreme(Cal) 639
High Court of Calcutta
J.N. Patel, Sambuddha Chakrabarti, JJ.
Ranjit Pal – Appellant
Versus
Howrah Municipal Corporation – Respondent
A.S.T. 36 of 2012
Decided on : July 18, 2012
Saptangshu Basu, Anjan Banerjee, Smriti Kana Mukherjee
The Commissioner of the Howrah Municipal Corporation has the authority to delegate his power to issue demolition orders under Section 177(1) of the Howrah Municipal Corporation Act, 1980, to other officers or employees of the Corporation, and such delegation renders the demolition order valid.
Headnote:
HOWRAH MUNICIPAL CORPORATION ACT, 1980 - SECTION 177(1) - Unauthorised Construction - Demolition Order - Commissioner's Discretion - Delegation of Power to Assistant Engineer - Validity of Demolition Order - Regularisation of Unauthorised Construction - Public Safety and Convenience.
Fact of the Case:
Appellants obtained permission for constructing a residential complex, including flats for sale, with a sanctioned plan approved by the Howrah Municipal Corporation (HMC). Following complaints of unauthorized construction, the appellants were called for a hearing by the HMC authorities. The appellants claimed to have submitted an 'as-made' plan and challenged the demolition order issued by the Assistant Engineer, Borough-V, arguing that the Commissioner was the competent authority to issue such an order.
Finding of the Court:
The Court held that the Assistant Engineer, Borough-V, had the authority to issue the demolition order as the Commissioner had delegated his power under Section 28(3) of the Howrah Municipal Corporation Act, 1980. The Court also found that the appellants had admitted to making unauthorized construction and that the extent of deviation from the sanctioned plan was substantial, indicating deliberate action.
Issues: 1. Whether the Assistant Engineer, Borough-V, had the authority to issue the demolition order or if it was solely within the Commissioner's power under Section 177(1) of the Act. 2. Whether the demolition order was valid despite not specifying the extent of deviation or the specific portion to be demolished. 3. Whether the HMC had the power to regularize the unauthorized construction.
Ratio Decidendi: 1. The Court relied on Section 28(3) of the Act, which empowered the Commissioner to delegate any of his powers or functions to any other officer or employee of the Corporation. The Court found that the Commissioner had specifically delegated the authority to issue demolition orders under Section 177(1) to the Assistant Engineer, Borough-V, making the demolition order valid. 2. The Court held that the appellants were aware of the unauthorized construction and the reasons for the demolition order, as mentioned in the notice issued to them. The Court opined that non-mentioning of specific details in the order was not fatal in this case, given the appellants' acknowledgment of the unauthorized construction. 3. The Court referred to the Supreme Court's decision in Priyanka Estates International Private Limited and Others v. State of Assam and Others, which held that unauthorized constructions are against public interest and hazardous to the safety of occupants, and that regularizing such constructions would affect the public at large.
Final Decision: The Court dismissed the appeal, upholding the validity of the demolition order issued by the Assistant Engineer, Borough-V. The Court also held that the HMC lacked the power to regularize the unauthorized construction.
SAMBUDDHA CHAKRABARTI, J.
1. THIS appeal against an order dated February 7, 2012, passed in W.P. No. 176(W) of 2012 by a learned single Judge of this Court raises a very important point of law.
2. THE appellants had obtained permission for construction of a residential complex both for their personal use as also for sale to outsiders. The plan was sanctioned by the Howrah Municipal Corporation (hereinafter referred to as the 'Corporation'). On a complaint by some local people regarding the construction made by them the appellants were called by the respondents authorities for a hearing regarding the unauthorized construction raised by them. They participated in the hearing wherein their stand was that they had already submitted a 'as-made' plan. They have alleged that the respondents authorities in total derogation of the relevant provisions of the Howrah Municipal Corporation Act, 1980 (hereinafter referred to as the 'Act') passed an order of demolition on December 9, 2011 of the unauthorisedly constructed portion within seven days from the date of receipt of the order.
3. THE appellants filed a writ petition, inter alia, for an order setting aside the order of demolition and for a direction upon the Commissioner of the Corporation to reconsider the whole issue on the basis of the 'as-made' plan submitted by them. The main grievance of the appellants was that the order impugned in the writ petition was issued by the Assistant Engineer, Borough-V and not the Commissioner of the Corporation who is the competent authority to take a decision for demolition of the building.
4. THE learned Single Judge dismissed the writ petition. Against that order the present appeal has been filed.
5. IT has been alleged by the appellants that the learned single Judge failed to appreciate the case of the petitioners as made in the writ petition. The petitioners maintained that the learned single Judge failed to appreciate that 17 flats in the said complex were occupied by respective owners who have been staying there for quite some time. The appellants had reiterated the point taken in the writ petition that under Section 177(1) of the Act the decision to demolish a building is to be taken by the Commissioner and the Assistant Engineer, Borough-V was not the competent person to issue an order of demolition. According to the appellants the concerned Assistant Engineer did neither have the authority nor was the power delegated to him to issue an order of demolition and the delegation of power in the present case is missing while the order for demolition was issued. According to them Section 177 of the Act gives enough scope to the Corporation to issue the order of demolition and at the same time to consider the issue of pending 'as-made' plan. The appellants have also made a grievance that the learned single Judge should have appreciated that the order of demolition if effected would affect 17 flat owners. The other point taken by the appellants was that the learned single Judge erred in not appreciating that the deviation from the sanctioned plan has been done unintentionally and the petitioners have prayed for payment of penalty for such deviation.
6. THE Assistant Engineer, Borough-V of the Corporation affirmed an Affidavit in the appeal. It was specifically mentioned in the said Affidavit that a building plan for construction of a three-storied residential complex was submitted before the competent authority of Borough-V of the Corporation. The sanctioned area of each floor was 323.233 square meter and on the staircase head room the sanctioned area was 27.332 square meter. The complaint received by the Corporation was referred to the Assistant Engineer, Borough-V. On June 21, 2011 the appellant was directed to contact the Sub-Assistant Engineer for the purpose of a joint inspection in respect of the unauthorised construction in the concerned premises. It was found that the appellants made construction in deviation of the plan and a procee
